TaxTMI 
TaxTMI 
2024 (3) TMI 1209
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....or the Assessment Year 2016-2017, is not on account of any mistake, but is on account of change of opinion, which is impermissible in law. 5. Shorn of unnecessary details. The facts relevant for the present petition are as under: 1. The petitioner had on 4.10.2016 filed an E-return for the Assessment Year 2016-2017 declaring a total income of Rs. 32,58,510/-. The case of the petitioner was selected for limited scrutiny through CAAS and a notice under Section 143(2) of the Income Tax Act was issued to the petitioner on 31.8.2017. Subsequently notice under Sections 129 and 142(1) of the Income Tax Act along with the questionnaire has been issued to the petitioner calling for details in connection with the return of income filed, were also issued. 6. On 26.11.2018 a show cause notice was issued to the petitioner calling upon him to explain as to why the amount of Rs. 3,07,96,304/-, which was claimed to be on account of clandestine and unaccounted sales, should not be added to the total sales of the petitioner. In the reply dated 26.12.2018, the petitioner denied the allegations and claimed that all the sales of the finished products to M/s Sahanu Sponge and Power Ltd an....
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....mistake but is based upon the change of opinion is clearly not sustainable in law. Learned counsel in support of his submissions places reliance upon M/s. Indian & Eastern Newspaper Society, New Delhi, Vs Commissioner of Income Tax (1979)4 SCC 248, para 14; Commissioner of Income Tax Vs Kelvinator of India Ltd 2010(2) SCC 723, and Aroni Commercials Limited Vs Dy. Commissioner of Income Tax 2014 SCC online Bombay 221. 12. Ms S. Linhares, learned counsel for respondent no. 2 while supporting the impugned judgment and notice, contends, that this is a case in which there is no change of opinion, but a mistake committed, While making earlier assessment for which reason, the re-opening of the assessment and the consequent order impugned is clearly justified. She relies upon Gruh Finances Ltd VS. Joint Commissioner of Income-Tax(Assessment) (2000) SCC online Gujarat 451 in support of her contention. 13. In M/s Indian and Eastern Newspaper Society (supra) it has been held that in the case of reappraising the material considered by him during the original assessment the Income Tax Officer if he discovers that he has committed an error in consequence of which income has escaped assessm....
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..... Income escaping assessment.-If the assessing officer, for reasons to be recorded by him in writing, is of the opinion that any income chargeable to tax as escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in Sections 148 to 153 referred to as the relevant assessment year):" (emphasis supplied) Section 147 reads as under: "147. Income escaping assessment.-If the assessing officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or ....
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....s of which it is opined that there is large-scale suppression of sale by the assessee by not offering the sales amounting to Rs. 3,07,96,304/- to tax in its return of income, which are contained in paragraph 5.2, which are the same reasons as found in the assessment order dated 28.12.2018. This would clearly indicate, that considering the law which was prevailing on the date on which notice under section 148 of the Income Tax Act dated 27.3.2021 was issued, a mere change of opinion, could not be the reason for reopening of the assessment. 20. Though Ms. S. Linhares, learned counsel for respondent no. 2 places reliance upon Gruh Finances Ltd (supra) that in our considered opinion, is a case based upon the absence of conscious consideration of the material on record at the time of the first assessment on account of which it has been held that a mistake has been committed, which according to us, is not the position, extant in the present case as indicated by the discussion made above. Even Gruh Finances Ltd (supra) holds that if the conscious application of mind to the relevant facts and material available or existing at the relevant point of time while making an assessment was mad....